Concerns remain after Bulger trial

“One down and two to go,” Tom Donahue said outside the federal courthouse in Boston last week.

Mr. Donahue, son of one of the murder victims of James “Whitey” Bulger, spoke after South Boston crime boss Bulger was convicted of 31 of the 32 criminal charges against him.

Mr. Donahue said he was referring to holding the government and Patrick Nee responsible for decades of murder and extortion, as Mr. Bulger finally has been after his 16 years as a fugitive and decades of corrupting government officials before that.

Mr. Nee, who now is featured on a cable-channel reality show about current crime in Boston, was mentioned multiple times during Mr. Bulger's two-month trial as being present at the scenes of murders and other crimes — including that of Michael Donahue, who was caught in the machine gun fire aimed at the passenger to whom he had offered a ride home.

Mr. Nee was never prosecuted for those crimes, although he has done prison stints for gun running and attempted armed robbery.

Thomas J. Foley, who headed an investigation that overcame FBI corruption and led to the indictment of Mr. Bulger and his Winter Hill cohorts, did not disagree with Mr. Donahue's son. “People's expectations were high that a lot more was going to come out at the trial as far as corruption,” said Mr. Foley, a retired state police colonel and Worcester resident.

Many people were shocked when Mr. Bulger reneged on a vow to testify about what people expected to be a recounting of the corruption that allowed him to rule Boston's underworld.

Thomas B. Duffy, also a Worcester resident and retired state police major who worked on the Bulger investigation, said “given the fact of the feeble defense that was put on and the fact that Whitey never testified ... I'm perplexed over why he went to trial.”

He said, “certainly this whole case was ridden with corruption. But Bulger's culpability and the government's culpability are separate and distinct.”

Defense lawyer J.W. Carney said the point was never to set his client free, but to have the truth about the government corruption come out. Mr. Bulger said he refused to testify because he was not permitted to talk about a deal he said he made with the former — and now dead — head of the strike force against organized crime that he said allowed him to break the law with impunity.

But Mr. Carney, a College of the Holy Cross graduate and former student at Worcester's Chandler Junior High School, and co-counsel Henry Brennan, brought out plenty of corruption during the trial. They asserted that Mr. Bulger was never an informant — despite his FBI informant file of hundreds of pages — but rather that he paid FBI agents, state and local police for information. That was disputed by the prosecution and Stephen Flemmi, Mr. Bulger's crime partner.

Right in the opening statements, the defense acknowledged Mr. Bulger engaged in drug trafficking, bookmaking, and extortion and prosecutors acknowledged corruption and wrong-doing by some FBI employees in the '70s and '80s.

Following law enforcement abuses alleged in 1998 hearings before Judge Mark Wolf, then Attorney General Janet Reno named a special prosecutor to investigate how rampant it was: besides the Boston FBI, did it go to officials in Washington, in the U.S. Attorney's office, to the Justice Department?

But even though Connecticut Deputy U.S. Attorney John Durham, the special prosecutor, convicted one FBI agent, one state trooper and one Boston policeman, he evidently did not turn in a report that he promised for 2001. Asked whether Mr. Durham turned in the report or was supposed to, the Justice Department in Washington referred a reporter to the U.S. Attorney's office in Boston.

Carmen M. Ortiz, who has been the U.S. Attorney for Massachusetts since 2009, said her understanding is that there is no report. She said her office had been recused from producing it.

She added that congressional hearings on the matter produced a voluminous report by the House Committee on Government Reform and the trials of former FBI agent John J. Connolly in federal court in Boston and state court in Florida and various civil trials produced records of evidence of corruption.

Mr. Foley wondered after the trial “has anything been learned in this case? I think many people, including myself, don't think it has.

“The government's way of doing business was inappropriate. It needs to change,” he said.

“You can't take the top individuals in a criminal organization (and) give them protection. They should be targets, not partners.”

Vincent Lisi, who in the past month became special agent in charge of the FBI's Boston office, said it's hard to respond to someone who retired in 2004, as Mr. Foley did, and no longer has direct knowledge. SAC Lisi said that FBI guidelines have changed since those days, “with certain trip wires” so that FBI headquarters can review and vet confidential informants in the field offices.

“I can appreciate someone having concerns that our practices haven't changed. Years ago we had a small number of agents here in Boston who were corrupt.

“Their actions caused some people — not all — to lose confidence and faith in the FBI and I can appreciate that. Now it's our job to regain the confidence from the people who lost it previously.”

But Mr. Foley said the Justice Department's Inspector General reported in 2006 that it found violations of the 2002 guidelines in 87 percent of the confidential informant files his office examined. The former colonel said that the principle of enabling violent criminals, sometimes of high rank, extends from Vincent Barboza helping to convict four innocent men in the 1965 murder of Teddy Deegan, to the free pass that Mr. Bulger received for his crimes, to the FBI's use of Mark Rossetti, a violent mafia captain, as an informant until state police arrested him in 2010.

SAC Lisi said FBI headquarters has conducted an exhaustive review of the Rossetti matter. It will issue a report, but it has been delayed by sealed documents in state court. In the meantime, he has been told “the allegations that have been made by some have no merit.”

The special agent in charge referred to an August 2011 joint statement by his predecessor and state police Col. Marian McGovern that “the FBI employees responsible for handling this matter did not engage in any inappropriate activity and acted in accordance with Department of Justice and FBI rules. They demonstrated a high level of integrity and professionalism.”

The statement added “The FBI reiterates that when it becomes aware of criminal activity by sources, the FBI is required to report the allegations to the United States Attorney's Office and FBI officials. The FBI complies with those rules.”

Mr. Foley also took issue with the Justice Department's civil division trying to deny relief to the families of Mr. Bulger's victims when it knew they had been wronged by government action — while another part of the Justice Department prosecutes Mr. Connolly and Mr. Bulger for those actions.

U.S. Attorney Ortiz said that after the Bulger trial, families of Mr. Bulger's murder victims expressed to her “a great amount of gratitude and relief” including some of those whose murders were found “not proved” by the jury. She said the interactions were “painful but positive” and she “deeply sympathized with them.”